9th Circuit Orders Withholding of Removal for Gay Man from Philippines

A unanimous panel of the U.S. 9th Circuit Court of Appeals, based in San Francisco, ruled on July 24 in Vitug v. Holder, 2013 Westlaw 3814772, that the Board of Immigration Appeals (BIA) should not have reversed a ruling by an Immigration Judge (IJ) that Dennis Vitug, a gay man from the Philippines, was entitled to remain in the United States under U.S. laws providing refuge for people subjected to persecution in their home countries.  The court backed up the Immigration Judge’s conclusion that Vitug had shown that he was subjected to persecution, and that the government failed to meet its burden to show that conditions in the Philippines had changed sufficiently to rebut the presumption that Vitug would suffer persecution if required to return.

Writing for the appellate panel, Judge Harry Pregerson pointed out that the IJ had found Vitug to be a credible witness and had concluded that Vitug had been beaten and robbed five times in Manila “after being targeted as a homosexual,” had been harassed by police officers based on his “perceived sexual orientation,” and had been unable to find a job “on account of his sexual orientation.”  The IJ had also found, based on the evidence Vitug presented, that (1) “The police will not do anything to help gay men who report abuse but will rather ridicule them and tell them they deserve it,” and (2) “The government has failed or refused to protect gay men from persecution.”

The IJ concluded that Vitug had been persecuted “because of his membership in the social group of homosexual Filipino men,” and that the government had not presented any contrary evidence.   The IJ also concluded that Vitug might be subjected to torture if deported back to the Philippines, finding him eligible for protection under the Convention Against Torture, an international treaty to which the U.S. is a party, which requires our country to give refuge to people who might be subjected to torture in their home country.

Under the rules governing administrative review, these IJ findings should not generally be reversible by the Board of Immigration Appeals, yet the government persuaded the BIA to reverse, based on the Board’s own view of the evidence.  (The BIA decision was issued on November 6, 2007, and is fairly representative of the kind of anti-gay bias exhibited by the BIA during the Bush Administration.)   “In reaching its decision,” wrote Judge Pregerson, “the BIA did not expressly find any of the IJ’s factual findings to be clearly erroneous.”  Instead, it predicated its reversal on its own review of the record, opining that Vitug had failed to prove that the attacks against him “rose to the level of past persecution,” that a particular attack against him by a man he met in a bar was merely a “crime of opportunity”, and that “the record does not support the conclusion that the [Philippine] government would be unable or unwilling to protect him,” because Vitug had actually returned to the Philippines after his first US visitor visa expired, then returned to the U.S. on a  new visitor visa, which he overstayed, finding work in the U.S.  Finally, the BIA found a lack of evidence in the record that Vitug would face torture in the Philippines.

Vitug filed a motion for reconsideration, but it was rejected by the BIA because it arrived one day after the filing deadline, due to a snowstorm and the grounding of FedEx planes, according to Pregerson’s opinion.  The BIA issued an amended order in February 2008 to correct a misstatement in its prior decision, and Vitug again filed for reconsideration, this time meeting the deadline, but the BIA denied his motion in a confused statement that the appeals court found to be internally contradictory.

The Court of Appeals found that the BIA had overstepped its role regarding the finding on persecution, pointing out that “DHS regulations prohibit the BIA from ‘engaging in de novo review of findings of fact determined by an immigration judge.'”  Wrote Pregerson, “We conclude that in its original November 6, 2007 decision, the BIA engaged in its own factfinding.  Such factfinding was improper.”  The court went through various aspects of the BIA opinion, pointing out places where it had obviously engaged in factfinding contrary to the facts found by the IJ, and had ignored “factual findings of the IJ that were key to the IJ’s holding,” which the court found to be an abuse of discretion.

Having found that the BIA “failed to apply the clear error standard of review to the IJ’s factual findings, and also abused its discretion by ignoring the factual findings of the IJ,” the court would normally remand the case so that BIA could apply the correct standard, but it found no need to do so here, “because substantial evidence does not support the BIA’s denial of withholding of removal.”

Pregerson pointed out that under immigration law, once a petitioner has established that he is a victim of past persecution based on one of the grounds recognized by the courts — which include, for this case, sexual orientation — there is a presumption of entitlement to the remedy of withholding of removal, which would allow the petitioner to remain in the United States.  The government can only prevail in such a case if it can “show by a preponderance of the evidence that there has been a fundamental change in circumstances such that the petitioner’s life or freedom would not be threatened or that the petitioner could relocate internally within his home country to avoid persecution.” 

In this case, wrote Pregerson, the government had failed to meet this burden.  The IJ found Vitug to be a credible witness, and accepted his testimony about the persecution he had suffered.  The government did not challenge this finding, and did not introduce any contradictory evidence.  Wrote Pregerson, “No reasonable factfinder could conclude that the harm Vitug suffered did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization,” so he is presumptively entitled to stay in the U.S.  The only basis for the government’s argument to the contrary was some references in Vitug’s documentary evidence that there was some gay activism going on in the Philippines and that one municipality had passed a local ordinance to protect gays from discrimination.  “Such evidence, however, does not indicate that there is any less violence against gay men or that police have become more responsive to reports of antigay hate crimes,” wrote Pregerson.  “The government therefore failed to meet its burden of proof to show by a preponderance of the evidence that the circumstances within the Philippines have changed such that Vitug no longer faces a threat to his life or freedom in the Philippines.”

While the court agreed with the BIA that the IJ’s conclusion as to torture was not supported by the IJ’s factual findings and refused to upset the BIA’s reversal on the issue of Convention Against Torture relief, the court ordered the BIA to grant withholding of removal status to Vitug, ending any effort to deport him from the United States.

There is a certain irony about the case having taken so long to be considered by the 9th Circuit.  The IJ’s decision was issued in 2007, based on a hearing held in June of that year, which basically froze the factual record as of that date.  The BIA decisions came later in 2007 and early in 2008, and then Vitug appealed.  The sheer volume of asylum/withholding/CAT appeals is so great in many circuits — and especially in the 9th, which covers the entire west coast — that it may take many years until a panel of the court actually takes up the case for decision.  In this case, the court unusually scheduled a hearing, which was held on February 7, 2013, and was limited, of course, to Vitug’s argument that the BIA had improperly reversed the IJ based on the record compiled at the 2007 hearing.   It may be that conditions for gay people in the Philippines have improved since then — after all, six years have gone by and there have been some court rulings in the Philippines that have advanced gay rights — but that would be irrelevant, since the case must be decided based on the record made at the 2007 hearing.  Welcome to the surreal world of American administrative law, where time stands still!


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